Abstract
Nowadays criminal law has root in philosophical and intellectual evolution in
18 century which climaxed by punishment and penalty thesis by Cesar Beccaria
in 1764. Cesar Beccaria's book was beginning of principle legality of penalties
and punishment and in depth of his idea, he codified criminal procedure code.
Beccaria believed that " only law can determine punishment for crimes, in
similar way, Montesquieu who believed in abstract power segregation Think
that " if judgment power and legislation power (legislature and judicature) won't
separate from each other, there will be no sign for freedom". Finally by creating
principle legality of penalties and punishment, basis was created for producing
peace and restricting parliament in desired decision in recognition penalties but
as we can see by passing year, this principle was not far from faults and this
matter today caused that in procedure of human right European bureau, there is
dialogue about qualification principle which in this thesis we explain this new
principle and weak and strong point of that issue.
Introduction
Principle legality of penalties and punishments is one of the main principle of
penalty law. Aforementioned principle means that people have penalty
responsibility against some action which aforementioned action with no
ambiguity in law will be crime and there is punishment for them
Another word, the meaning of above principle is that, no action is crime unless
before that in law, it will be clearly and explicitly crime and whenever the crime
is proved, the judge is not allowed to determine punishment against criminal
action for condemn which is not in law but merely can sentence the condemn to
punishment which in predicted in law for that action. The most important goal
of government in principle legality of penalties and punishments consist:
legitimating lawful system governed in country via restricting interference of
government in penal justice according to right and freedom of people, merely
according to cases that forbidden action is applied and explained from law to
people.
In each system that law will be backed to past , definition of crimes is
ambiguous, this matter cause increasing the qualification and selection if judge
and police; lack of observing this principle cause omitting law governance and
separating power. Aforementioned principle in support of constitution and
separating power from each other, play an important role.
Another word, the goal for governance of legality of penalties and punishments
is to restrict the governor in interpretation of penal law against parliament. The
reason for restriction is parliament selection and not selection of judicature,
means that parliament have power for setting up law and in opposite judicature
has the obligation for enforcement of law setup by parliament. Without
considering that this organization by criminology and unlimited interpreting of
law, indirectly enforce law.
As Phonlist, German lawmaker says that: principle legality of penalties and is a
shield foe citizen against unlimited power of government. This principle
protects people from cruelty pressure of majority and another word power
monster.
B) International documents
Contemporary international documents in aspirate from identification of
discussed principle of human right act and France citizen and they clarified this
principle. Clause 1 of article 15 regulate international covenant of civil and
political right (that from this moment we call it by summary covenant)" no one
because of action or not doing the action during commitment which is not crime
according to national and international law, will not be condemned and also
there will be determined no severe punishment than the action during crime
commitment. Article 2 clause 11 universal declaration of human right is
formalized by principle legality of penalties and punishment. Also
aforementioned principle in other international and regional documents is also
clarified.
Conclusion
In long run, principle legality of penalties and punishments, that we can see
beginning of that in reflection of Cesar Beccaria, governed in penal lawmaking,
in the way that one of the fundamental principle and goal of this principle is
restricting the compass of parliament's option and lack of unlimited dominance
and prevention of desired decision making toward different kind of crimes.
Specific clarifying of crimes in law id the main and fundamental characteristic
for principle legality of penalties and punishment, but as we can see from
principle legality of penalties and punishment, somewhat we can see wastage of
people's right. It means that if our law is available and clear that community is
that is consist of different culture and levels will be informed? And with precise
look which show increasing crime in medium and low class of people in that
society, can we get right of people by reliance to legality principle? As we can
see, predicted crimes in law are not codified and lump that availiability to them
will be possible in a specific book and text of law have ambiguity and is so
changeable that community cannot have complete and accurate understanding
from it. In conclusion we should predict proper solution in this case how we can
punish people which are not informed accurately from this law? And if we
consider the goal of legislator from predicting crime in law and punishment
appropriate to that, if we can reach this goal by lack of knowledge of people
from crime and punishment of them? It seems a theory which is far from mind,
but today we can see new discussion in human right procedure of European
bureau which make us far from weak points of legality principle of crime and
that principle is quality principle of crime. As we said, quality principle has
three elements. 1- Non ambiguity 2- predictability, at last availiability of law.
This new principle to a much extent make us far from proposed problem in
legality principle, but by thinking about that we faced problem in this principle
and it is lack of mentioning scope of parliament option, which don not
mentioning that means omitting of that.
While in all this year, the most important element of legality principle and from
strong point of that, limiting the scope of parliament option and prohibition of
decisions is stylistic and eliminating this element by itself encounter us with a
big problem. So in conclusion. The ,mentioned suggestion in this thesis is using
quality principle by adding fourth element which is restriction of parliament that
we can get the right better and more and issue verdicts according to justice,
because by considering the content of quality principle we can conclude that the
goal of this principle is prevention of punishing the people for crimes that are
not accurately aware of them and even providing the availability to that laws ,
because of its ambiguity they do not have appropriate understanding of that
crime .